GAURANGA NAIK Vs. COLLECTOR, SAMBALPUR

JUDGEMENT

(1.) The office of Sarpanch of Kulundi Gram Panchayat was reserved for candidates belonging to Scheduled Tribe Community. As per the writ petition, Petitioner being Gond by caste, belongs to Scheduled Tribe. He along with opp. party Nos. 3 and 4 contested the election held on 15.2.2007 for the said office, wherein he won the election and was declared elected. The said election was challenged by opp. party No. 3 in Election Misc. case No. 3 of 2007 before the Court of learned Civil Judge (Junior Division) Kuchinda, mainly on the ground that the returned candidate belongs to Nakasia caste, which does not come under the Scheduled Tribe category, but by influencing the Addl. Tahsildar, Kuchinda, he could manage to obtain a caste certificate showing his caste as Nagesia, which is recognized as Scheduled Tribe in the State of Orissa. The Petitioner in his show cause before the learned Civil Judge (Junior Division) Kuchinda flatly denied the averment that he is Nakasia by caste. It is his specific case that he belongs to Nagesia caste, which comes under the Scheduled Tribe category, and, accordingly, caste certificate was issued in his favour showing him as a member of Schedule Tribe Community.

(2.) On the basis of the pleadings of the parties 5 issues were framed. To establish his case, the writ Petitioner examined 2 witnesses including himself as O.P.W. No. 1, while the present O.P. No. 3 examined himself alone as P.W.1. Besides adducing oral evidence, the writ Petitioner filed two Record of Rights vide Exts. 1 and 2 and opp. party No. 3 filed the caste certificate issued by the Addl. Tahasildar, Kuchinda marked as Ext.A. After assessing the evidence, both oral and documentary, learned Civil Judge (Jr. Division) Kuchinda held that Ext.A was issued under the Orissa Caste Certificates (for Scheduled Caste & Scheduled Tribe) Rules, 1980 (hereinafter referred to as 'the Rules'), Rule 4 of which prescribes the procedures to be adhered to before issuing a caste certificate by the competent authority. So under WM, of the Indian Evidence Act, it can be presumed that the competent authority issued the caste certificate in favour of the Petitioner on due compliance of the procedure. Exts. 1 and 2. the Records of Right, even though show that the Petitioner belongs to Nakasia caste cannot conclusively prove that he is a member of Scheduled Tribe and accordingly dismissed the Election Misc.case vide judgment and order dated 29.9.2007.

(3.) Being aggrieved with the said judgment and order, the election Petitioner (present opp. party No. 3) preferred Misc. Election appeal No. 6/ 1 of 2007-08 before the Addl. District Judge, Kuchinda. After hearing learned Counsel for the parties, learned Addl. District Judge, Kuchinda held that Exts. 1 and 2, the Records of Right have strong evidentiary value. A duty is cast under Rule 5 of the Rules upon the competent authority to base his verification with regard to caste of a person on the basis of revenue record. Ignoring such entry in the Records of Right vide Exts. 1 and 2 and without support of any substantial material to that effect, the Addl. Tahasildar, Kuchinda issued the caste certificate under Ext.A in favour of the returned Candidate (the Petitioner). So, the order passed by learned Addl, Civil Judge (Jr. Division) was set aside by the appellate Court vide Its judgment and order dated 20.1.2009. The returned candidate has filed the present writ petition challenging the said judgment and order of the appellate Court.